Wimpey v. Sanchez, 79-1621
| Citation | 386 So.2d 1241 |
| Decision Date | 22 July 1980 |
| Docket Number | No. 79-1621,79-1621 |
| Parties | Morris WIMPEY et ux., Appellants, v. Gabriel A. SANCHEZ, M.D., et al., Appellees. |
| Court | Court of Appeal of Florida (US) |
Kuvin, Klingensmith & Lewis and R. Fred Lewis, Miami, for appellants.
Preddy, Kutner & Hardy and John A. Thompson, Jr., Miami, for appellees.
Before SCHWARTZ, NESBITT and PEARSON, DANIEL S., JJ.
PEARSON, DANIEL S., Judge.
Morris Wimpey and his wife, Elsa, appeal from a final judgment dismissing their actions for damages arising out of the alleged improper performance of a bilateral vasectomy upon Morris which, in part, resulted in the unanticipated pregnancy of Elsa and, thereafter, in a necessary termination of that pregnancy. 1 The final judgment of dismissal was based upon the trial court's determination that the applicable statute of limitations, Section 95.11(4)(b), Florida Statutes (1977), barred the Wimpeys' claims. That section provides in pertinent part:
"(A)n action for medical malpractice shall be commenced within two years from the time the incident giving rise to the action occurred or within two years from the time the incident is discovered, or should have been discovered with the exercise of due diligence . . . ." 2
The Wimpeys filed their circuit court actions on July 7, 1977. The pertinent allegations of the Wimpeys' complaint are these: on August 29, 1974, Dr. Sanchez negligently performed a vasectomy on Morris Wimpey; beginning the following day, August 30, 1974, Morris experienced pain and discomfort, and had swelling and hematomas in the scrotal sac; in February or March, 1975, Elsa Wimpey conceived; on July 12, 1976, the Wimpeys filed a medical mediation claim 3 pursuant to Section 768.44(4), Florida Statutes (Supplement 1976), upon which no hearing was held or written decision issued.
The obvious importance of this last allegation is that the filing of a medical mediation claim effectively extended the limitations period.
§ 768.44(4), Fla.Stat. (Supp.1976).
In order for the trial court to dismiss the Wimpeys' action as limitation barred, it necessarily had to determine from the pleadings that the action was commenced after the two-year limitation period as extended by the tolling provision. Two questions had to be answered before the determination could be made: (1) for what length of time was the limitation period tolled, and (2) on what date did the Wimpeys discover or with the exercise of due diligence should they have discovered the incident which gave rise to their action?
The defendants' position is that the jurisdiction of the medical mediation panel terminated by operation of law six months after the claim was filed, and that, therefore, the statute of limitations was tolled for six months. 4 They rely upon Section 768.44(3), Florida Statutes (Supplement 1976), which provides:
5 (emphasis supplied).
Admittedly, there is ample authority to support the defendants' position that in a case such as the present one where hearing has not commenced, jurisdiction of the panel terminates six months from the date the claim is filed and, accordingly, the statute of limitations is tolled for six months. Cohen v. Johnson, 373 So.2d 389 (Fla. 4th DCA 1979); Feinstein v. Brown, 370 So.2d 1172 (Fla. 4th DCA 1979); Raedel v. Watson Clinic Foundation, Inc., 360 So.2d 12 (Fla. 2d DCA 1978); Green v. Broward General Medical Center, 356 So.2d 877 (Fla. 4th DCA 1978). 6 However, the law in this district is that jurisdiction of the medical mediation panel terminates under Section 768.44(3), Florida Statutes (Supplement 1976), ten months from the date the claim is filed, notwithstanding that no hearing has commenced within six months of the filing. Love v. Jacobson, 343 So.2d 1328 (Fla. 3d DCA 1977). 7
Having concluded that the jurisdiction of the medical mediation panel in the present case terminated by operation of law ten months after the filing of the Wimpeys' claim, it follows that the statute of limitations was tolled for ten months. 8
We turn now to the second question. In order for the defendants, invoking Section 95.11(4)(b), Florida Statutes (1977), to be entitled to dismissal of the plaintiffs' action, they were required to conclusively show from the complaint that the cause of action was discovered or should have been discovered with the exercise of due diligence before September 5, 1974. Glass v. Camara, 369 So.2d 625 (Fla. 1st DCA 1979). It is clear that no such showing has been made. That being the case, a dismissal of the Wimpeys' complaint on the ground that the applicable statute of limitations had run was precluded. 9 Nolen v. Sarasohn, 379 So.2d 161 (Fla. 3d DCA 1980); Mott v. Fort Pierce Memorial Hospital, 375 So.2d 360 (Fla. 4th DCA 1979); Tetstone v. Adams, 373 So.2d 362 (Fla. 1st DCA 1979); Tobin v. Dannheisser, 372 So.2d 970 (Fla. 1st DCA 1979); Almengor v. Dade County, 359 So.2d 892 (Fla. 3d DCA 1978); Brooks v. Cerrato, 355 So.2d 119 (Fla. 4th DCA 1978); Salvaggio v. Austin, 336 So. 2d 1282 (Fla. 2d DCA 1976). 10
Reversed.
1 The complaint contained five counts. Morris sued Dr. Sanchez, the surgeon, and his professional association for negligence and breach of contract; Morris and Elsa sued Dr. Vidal and Dade Pathology Associates, Inc., the pathologist and his pathology laboratory, for their negligent failure after receipt of tissue or specimen to report that the purported vasectomy had not been performed and for punitive damages against all defendants; and Elsa sued Dr. Sanchez for damages arising out of her pregnancy and abortion necessitated by an RH negative blood factor. Mrs. Wimpey contends that her separate action is controlled by the four-year statute of limitations contained in Section 95.11(3)(a), Florida Statutes (Supplement 1974). Her argument is that the two-year limitation period of Section 95.11(4) by its express terms applies only to "persons in privity with the provider of health care" which, she says, she is not. See Gonzales v. Jacksonville General Hospital, Inc., 365 So.2d 800 (Fla. 1st DCA 1978). We need not on this appeal decide this issue.
2 The statute of limitations in effect at the time the action is brought applies. Mazda Motors of America, Inc. v. S. C. Henderson & Sons, Inc., 364 So.2d 107 (Fla. 1st DCA 1978). See also Rubin v. State, 368 So.2d 69 (Fla. 3d DCA 1979). Section 95.11(4), Florida Statutes (1974), effective January 1, 1975, and Section 95.11(6), Florida Statutes (1973), also set a two-year limitation period on medical malpractice using different phraseology.
3 The filing of a medical mediation claim as a predicate to a malpractice action is no longer required. In Aldana v. Holub, 381 So.2d 231 (Fla.1980), the Supreme Court declared the Medical Mediation Act unconstitutional, but gave its decision prospective application only.
4 If the defendants are correct, then the Wimpeys having filed their action on July 7, 1977, would be limitation barred if they discovered or with the exercise of due diligence should have discovered the incident before January 5, 1975.
5 We are not concerned on appeal with this clause since a good cause extension was entered on September 20, 1976.
6 The Florida Rules of Medical Mediation Procedure provide that termination of jurisdiction shall occur if a "hearing has not been commenced within six months of the date of the filing of the claim," Rule 20.190(c). The rules, which became effective September 1, 1977, are not applicable to the present case. Additionally, we note that the rules were promulgated pursuant to Section 768.44(6), Florida Statutes (Supplement 1976), which authorized "procedural rules as may be established by the Supreme Court." Since the medical mediation proceedings in the present case antedated the rules, we need not address whether a rule setting forth the time when jurisdiction terminates (in ostensible conflict with the statute) is truly procedural. We are, however, cognizant of the Supreme Court's statement in Aldana v. Holub, 381 So.2d 231, 235 (Fla.1980), that "the rules do represent this Court's authoritative interpretation of the medical mediation statute." Procedural rules are not...
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